Date of Filing:25.08.2020

Date of Disposal:18.05.2023

BEFORE THE IV ADDL DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION BENGALURU

1^ST FLOOR, BMTC, B-BLOCK, TTMC BUILDING, K.H ROAD, SHANTHINAGAR, BENGALURU – 560 027.

ORDER

SMT.NANDINI.H.KUMBHAR, MEMBER

1. This complaint is filed by the complainant under section 35 of the C.P.Act, 2019 against the OPs alleging deficiency of service.  

2.   The brief facts of the case is as follows: 

The complainant has booked a flat and paid sum of Rs.25,00,000/- by cheque on11.06.2018. After receipt of booking amount the OP has issued allotment letter dt.15.06.2019. The complainant submits that immediately after booking of the said flat with OP, there was every choice of losing complainant job decided to cancel the booking with OP. Accordingly, the complainant approached OP and requested to cancel the said booking and asked to refund of the booking amount of Rs.25,00,000/-. The complainant sent email explaining the reason for cancellation dt.28.12.2018, another mail on 11.01.2019, but on 07.01.2019 the Manager of OP has initially agreed to refund the booking amount, but on 14.03.2019 OP has expressed her inability to refund the amount. The complainant submits that, after losing faith on the OP, the complainant visited the project site and came to know that the OP has not at all started construction work and the OP has been fully aware that the reason for the complainant demanded return of the amount paid by him. The assurance made by the OP failed and neglected to repay the amount. The acts of the OP have put the complainant mental agony and huge financial loss. The complainant issued legal notice through counsel on 30.08.2019. Inspite of received the said notice the OP neither paid the amountnor replied to the notice. Aggrieved by the act of the OP, the complainant preferred to file the present complaint and sought for the relief as prayed in the complaint.

3. Notice to the OP duly served, represent by counsel and filed version  and  affidavit.

4. The complainant has also filed chief examination affidavit by reiterating the complaint allegations and also filed documents in support of their plea.

5. Heard arguments and matter is reserved for orders.

6.  The points that arise for our consideration are;

1. Whether the Complainant prove that there is deficiency of service on the part of the OPs as alleged in the complaint and thereby prove that he is entitle for the relief sought?
2. What order?

7. The findings on the above points are as under:

Point No.1              :       Affirmative

Point No.2              :       As per final order

REASONS

8. POINT NO.1:-  The complainant has booked a flat and paid sum of Rs.25,00,000/- by cheque on11.06.2018. After receipt of booking amount the OP has issued allotment letter dt.15.06.2019. The complainant submits that immediately after booking of the said flat with OP, there was every choice of losing complainant job decided to cancel the booking with OP. Accordingly, the complainant approached OP and requested to cancel the said booking and asked to refund of the booking amount of Rs.25,00,000/-. The complainant sent email explaining the reason for cancellation dt.28.12.2018, another mail on 11.01.2019, but on 07.01.2019 the Manager of OP has initially agreed to refund the booking amount, but  on 14.03.2019 OOP has expressed her inability to refund the amount. The complainant submits that, after losing faith on the OP, the complainant visited the project site and came to know that the OP has not at all started construction work and  the OP has been fully aware that the reason for the complainant demanded return of the amount paid by him. The assurance made by the OP failed and neglected to repay the amount. The acts of the OP have put the complainant to mental agony and huge financial loss. The complainant issued legal notice through counsel on 30.08.2019. Inspite of received the said notice the OP neither paid the amount nor replied to the notice. Aggrieved by the act of the OP, the complainant preferred  to file the present complaint and sought for the relief as prayed in the complaint.

9. OP represented by counsel and filed their written version and denied complaint allegations and also denied deficiency in service on their part. The OP admits that the complainant had paid a sum of Rs.25,00,000/- towards booking apartment as against Rs.30,00,000/- as booking amount as per the payment schedule and Rs.5,00,000/- was due. The complainant instead of making the due payment sent email requesting to cancel the booking as he was unable to mobilize the funds due to losing his job and also banks are not considering his loan application due to age factor and as per clause 16(Vii) and clause 8(i) of the agreement OP denies to refund the amount. However, the OP is putting up the construction considering the limit stipulated therein. As per clause 8(i) if the purchaser fails to make such outstanding payments beyond the stipulated period of 15 days, the developers shall have sole discretion to cancel this agreement and forfeited a sum equivalent to 15% of the total amount consideration  along with interest. And in view  of clause 8(ii) the complainant having expressed her desire to terminate the agreement of sale at his instance. He is not entitled  for refund, but OP entitled for claim of 15% as total consideration amount of Rs.3,00,00,000/- i.e. Rs.45,00,000/- out of which only Rs.25,00,000/- have been received by the OP so far and it was made clear that the cancellation was subject to terms of the agreement of sale entered between the parties. Hence, the OP is not liable to repay the same and prayed to dismiss complaint.

10. The complainant also filed chief examination affidavit by reiterating the complaint averments and also produced documents in support of their contention. The complainant has made allegations against OP  in their averments of the pleadings, thereby he alleged  the deficiency of service and prayed to refund the amount paid by him with other reliefs.

11. In view of the above discussion and on perusal of the contention of both the parties and documents placed on record by considering the pleadings of the complainant, we come to the conclusion that the complainant had paid booking amount of Rs.25,00,000/- OP as not disputed. It is also observed that after few days of the booking amount for the personal reason when complainant cancelled the said flat and  requested to return the advance amount of Rs.25,00,000/-, but OP refused to repay full amount.

12. In view of the above discussion and considering the facts of the parties, we held that there are certain factors or reasons the buyers proceed to cancel after booking with builders and the buyers having second thoughts or reasons about his choice and in this case immediately after booking the complainant sought for cancellation of the flat and after requesting several times the complainant sent email on 08.12.2018 as suggested by OP explaining reasons for cancellation of flat, which was after 05 months only from booking and legally OP cannot deduct any amount out of the advance payment. Stating that as per the payment schedule there was 05 lakhs was due for this regard till date. The OP has not approached the complainant or sent notice for balance/due payment, but OP has came to on record after filing this complaint and refused to refund the amount citing terms and conditions, as per email communication with OP that immediately after booking said flat with OP, the complainant approached OP because there was every chance of losing his job and the complainant requested for cancellation of flat and sought refund of money. Thus, what can be referred from written version of OP that construction has started  already and refused to refund, but on this regard the OP has not placed any record of estimation of the work and mere pleadings in the version cannot be considered as putting up construction work.

13. In view of the above discussion and upon considering the facts of the both the parties, we held that rejection of complainant’s claim to refund the advance booking amount of flat paid by the complainant cannot be repudiate and rejection of complainant claim is not justified. The complainant expressed the reason for cancellation of the said flat, initially the OP agreed to refund the said booking amount, but late OP refused. It pertains to note that the complainant asked for cancellation of flat who asked for prior to commencement of construction and payment of further installment. Both the said conditions are filled in the present case. So the OP could not forfeit 15% of the price or whole amount of booking, hence, OP is held liable to refund  the amount to the complainant with other reliefs. Accordingly, we answer Point no.1 partly in the affirmative.

14. POINT NO.2:- In the result, for the forgoing reasons,  we passed the following:

                                  ORDER

1. The complaint filed by the Complainant U/s 35 of the Consumer Protection Act, 2019 is hereby allowed in part.

2. OP is directed to refund an amount of Rs.25,00,000/- along with interest at 8% p.a. from the date  of deposit i.e.11.06.2018  till the date of refund within 45 days.

3. OP is further directed to pay compensation of Rs.25,000/- towards deficiency of service and  Rs.5,000/- towards cost of litigation to the complainant.

4.  Furnish free copy of this order to both the parties. 

 (Dictated to the Stenographer, got it transcribed, typed by him and corrected by me, then pronounced in the Open Commission on 18^th May  2023)

(RAMACHANDRA M.S.)

PRESIDENT

(NANDINI H KUMBHAR)            (CHANDRASHEKAR S.NOOLA)       

         MEMBER                                        MEMBER

Witness examined on behalf of the complainant by way of affidavit: D.Murali Prasad

Documents produced by the complainant:

Witness examined on behalf of the OP by way of affidavit: Sri Rakesh Prabhu-Who being the  Director of OP

Documents produced by the OP:

(RAMACHANDRA M.S.)

PRESIDENT

(NANDINI H KUMBHAR)          (CHANDRASHEKAR S.NOOLA)

         MEMBER                                     MEMBER

SKA*